G.R. No.

384

July 18, 1902

THE
UNITED
STATES, complainant-appellee,
vs.
AGAPITO FORTIN, defendant-appellant.
Florencio
Gonzalez
Diez,
for
appellant.
Assistant Attorney-General Constantino, for appellee.
TORRES, J.:
On the night of the 15th of February, 1897, while several
inhabitants of the barrio of Talaonga, in the town of Bulusan,
were gathered together in the town hall for the purpose of
electing subordinate officers, the presiding officer of the
meeting, Lucio Fusio, who was also the teniente of the barrio,
and was at that time drunk, got into an altercation with Agapito
Fortin. The trouble was brought on by Fusio, who, approaching
Fortin, bit him in the left shoulder. Against this aggression Fortin
defended himself, throwing the teniente to the ground, and as a
result of the struggle Fusio suffered some slight bruises.
This act would constitute the crime of an attack upon an agent
of the authorities and not upon the authorities themselves,
inasmuch as Fusio was not an authority, but was only a cabeza
de barangay and the teniente of thebarrio; but in view of the
fact that the commission of this crime has not been proven, the
provisions of article 249 and the last paragraph of article 250 of
the Penal Code can not be applied.
It appears from the record that the provocation and the
aggression were both on the part of the teniente of thebarrio,
who while drunk bit the accused in the shoulder as stated
above, and that the latter in repelling this aggression threw the
complaining witness to the ground, the latter being so drunk
that he could not represent the authorities with decorum, and
that in so doing the defendant only acted in his personal

defense against an unlawful attack made without provocation

on his part and by means which were entirely reasonable.
Therefore, the accused in so acting committed no offense and is
exempt from all responsibility, more especially because he
simply defended himself against a ridiculous and improper
aggression made by a drunken man, who, by reason of his
drunkenness and because he was the aggressor, was divested of
his character as agent of the authorities. The law can not grant
protection to one who has himself been the first to violate it.
By virtue, then, of these considerations we are of the opinion
that the judgment below should be reversed and the accused
acquitted, the facts not constituting an offense. The accused
being free from all liability, the judge below will act in
accordance with law with respect to the attachment of the
property of the accused. The cost of both instances are
adjudged de oficio.
Arellano, C.J., Cooper, Willard, and
Mapa, J., absent on account of illness.

Ladd,

JJ., concur.

G.R. No. L-12883

November 26, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
CLEMENTE AMPAR, defendant-appellant.

Filemon A. Cosio for appellant.

Acting Attorney-General Paredes for appellee.

MALCOLM, J.:

A fiesta was in progress in the barrio of Magbaboy,

municipality of San Carlos, Province of Occidental Negros.
Roast pig was being served. The accused Clemente Ampar, a
man of three score and ten, proceeded to the kitchen and
asked Modesto Patobo for some of the delicacy. Patobo's
answer was; "There is no more. Come here and I will make
roast pig of you." The effect of this on the accused as
explained by him in his confession was, "Why was he doing
like that, I am not a child." With this as the provocation, a
little later while the said Modesto Patobo was squatting
down, the accused came up behind him and struck him on
the head with an ax, causing death the following day.

As the case turns entirely on the credibility of witnesses, we

should of course not interfere with the findings of the trial

court. In ascertaining the penalty, the court, naturally, took

into consideration the qualifying circumstance of alevosia.
The court, however, gave the accused the benefit of a
mitigating circumstance which on cursory examination would
not appear to be justified. This mitigating circumstance was
that the act was committed in the immediate vindication of a
grave offense to the one committing the felony.

The authorities give us little assistance in arriving at a

conclusion as to whether this circumstance was rightly
applied. That there was immediate vindication of whatever
one may term the remarks of Patobo to the accused is
admitted. Whether these remarks can properly be classed as
"a grave offense" is more uncertain. The Supreme court of
Spain has held the words "gato que araaba a todo el
mundo," "landrones," and "era tonto, como toda su familia"
as not sufficient to justify a finding of this mitigating
circumstance. (Decisions of January 4, 1876; May 17, 1877;
May 13, 1886.) But the same court has held the words "tan
landron eres tu como tu padre" to be a grave offense.
(Decision of October 22, 1894.) We consider that these
authorities hardly put the facts of the present case in the
proper light. The offense which the defendant was
endeavoring to vindicate would to the average person be
considered as a mere trifle. But to this defendant, an old
man, it evidently was a serious matter to be made the butt
of a joke in the presence of so many guests. Hence, it is
believed that the lower court very properly gave defendant
the benefit of a mitigating circumstance, and correctly
sentenced him to the minimum degree of the penalty
provided for the crime of murder. lawph!1.net

Judgment of the trial court sentencing the defendant and

appellant to seventeen years four months and one day of
cadena temporal, with the accessory penalties provided by
law, to indemnify the heirs of the deceased, Modesto Patobo,
in the amount of one thousand pesos, and to pay the costs is
affirmed, with the costs of this instance against the
appellant. So ordered.
Arellano, C.J., Torres, and Araullo, JJ., concur.
Johnson, J., concurs in the result.
Street, J., did not sign.

Separate Opinions

CARSON, J., concurring:

I concur. I think, however, that the extenuating

circumstances attending the commission of the crime fall
under the provisions of section 7 of the Penal Code rather
than under the provisions of section 5 of that Code as
indicated in the opinion.